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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 294 of 2010

Munish Mubar                             …Appellant

Versus

State of Haryana                                                          …Respondent                      

J U D G M E N T  

Dr. B.S.CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 27.3.2008 in Criminal Appeal No. 553-DB of 2006 of  

the High Court of Punjab & Haryana at Chandigarh, by way of which,  

the High Court has affirmed the judgment and order of the learned  

Additional Sessions Judge, Gurgaon, dated 26.4.2006, by which the  

appellant  was  convicted  alongwith  the  co-accused,  Shivani  Chopra  

under  Sections  302/34  of  Indian  Penal  Code,  1860,  (hereinafter  

referred to as the `IPC’), and sentenced  to undergo life imprisonment

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and  to  pay  a  fine  of  Rs.5000/-  each;  under  Section  201  IPC,  to  

undergo rigorous imprisonment for three years and to pay a fine of  

Rs.300/-  each;   and  also  under  Section  120-B  IPC,  to  undergo  

rigorous  imprisonment  for  three  years.  In  addition  to  this,  the  

appellant was also convicted under Section 404 IPC, and sentenced to  

undergo rigorous imprisonment for  two years  and to pay a fine of  

Rs.200/-.  However,  it  was  ordered  that  all  the  aforementioned  

substantive sentences, would run concurrently.  

2. The facts and circumstances giving rise to this appeal are as  

under:

A. On  27.12.2002  at  1.00  P.M.,  one  Krishan  Pal  (PW.10),  a  

resident of Village Bhondsi,  District Gurgaon, noticed a dead body  

lying in a plot of land belonging to one Babu Singh.  Seeing that the  

corpse had multiple injuries, he informed Inspector Shamsher Singh,  

(PW.21), who was present at the Bus Stand, Bhondsi alongwith other  

police personnel.  Inspector Shamsher Singh, thereafter recorded the  

statement of Krishan Pal (Ex. PL) and reached the said land of Babu  

Singh. Inspector Shamsher Singh, I.O., then recovered the dead body  

lying there, and got the same photographed;  he also lifted from the  

spot, blood stained earth; a blood stained vest;  a boarding card issued  

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by  Jet  Airways;  an  almond  coloured  button,  one  blood  stained  

hammer and a knife, and upon recovery of the same, he prepared the  

recovery memos.  He then sent ruqa on the basis of which, an FIR was  

registered.  An inquest report was prepared, as regards the dead body.  

B. On 28.12.2002, the dead body so recovered, was identified to  

be that of one Ashok Jain, son of Shri Mehar Chand Jain, resident of  

Mehardeep, 1/9, Sarojni Road, Santa Cruz, Mumbai.  On 30.12.2002,  

Inspector  Shamsher  Singh  (PW.21)  obtained  the  details  of  mobile  

phone no. 9818082192, from the Airtel office at Okhla, New Delhi,  

and also collected a list of articles which the deceased had brought  

along with him on 4.1.2003 by Jet Airways.  

C. In the course of investigation, the investigating officer took into  

his possession, the records related to the parking of one Santro car no.  

UP-32-AG-9991 on 9.1.2003, from the car parking stand of the New  

Delhi Airport.  The investigating officer, further collected the records  

of hotel Suji International, Paharganj, Delhi and took the same into  

possession.  The investigating officer also arrested Shivani Chopra –  

the  co-accused  on  10.1.2003  and  recovered  from  her  one  mobile  

phone.   The investigating officer then arrested the appellant, Munish  

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Mubar on the same day while he was traveling in the abovementioned  

Santro car.  He recovered from the accused another mobile phone.  

D. On 11.1.2003, the appellant made a disclosure statement to the  

effect that he would show to the police, the place where he, along with  

the co-accused,  had disposed of  the dead body of the deceased,  as  

also, the place where they had gotten rid of deceased’s clothes.  Thus,  

on  13.1.2003,  the  investigating  officer  got  recovered  the  articles  

belonging to the deceased.  

E. The  investigating  officer  recorded  the  statements  of  a  large  

number  of  persons,  which  revealed  that  there  existed  an  illicit  

relationship  between the appellant  and co-accused  Shivani  Chopra,  

and  also  that,  she  was  an  employee  of  Ashok  Kumar  Jain  –  the  

deceased and was supposed to receive the deceased  at the Airport,  

upon his arrival from Mumbai.   

F. Upon  conclusion  of  the  investigation,  the  I.O.  submitted  a  

challan against the appellant and the co-accused Shivani Chopra, as  

well as one Sudhir Srivastava.  On committal of the said proceedings,  

both the accused were charged for the aforementioned offences, and  

the appellant was additionally charged under Section 404 IPC. Both of  

them pleaded not  guilty  and hence,  claimed trial.   The co-accused  

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Sudhir Srivastava could not be put to trial as he was absconding at the  

time.  

G. In  order  to  substantiate  the  charges  against  the  accused,  the  

prosecution  examined  22  witnesses.  The  appellant  also  examined  

some witnesses in his defence and, after the conclusion of the trial, the  

trial court upon appreciation of the complete material and evidence on  

record, found the appellant as well as the co-accused Shivani Chopra,  

guilty  of  all  the  charges  against  them  and  imposed  upon  them  

punishment as has been described, hereinabove.   

H. Aggrieved,  the  appellant,  as  well  as  the  co-accused  Shivani  

Chopra, filed Criminal Appeal Nos. 553-DB of 2006 and 359-DB of  

2006.   Both  the  appeals  were  heard  and  disposed  of  by  way  of  

common judgment dated 27.3.2008.   

I. Being  aggrieved,  the  co-accused  Shivani  Chopra,  filed  an  

S.L.P(Crl.) before this Court, which was dismissed in  limine.   The  

S.L.P.  filed  by  the  present  appellant,  however,  was  admitted  vide  

order dated 8.2.2010.   

Hence, this present appeal.   

3. Mrs.  Kawaljit  Kochar,  learned counsel  for  the appellant,  has  

submitted  that  both  the  courts  below have  erred  in  convicting  the  

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appellant, even though there is no evidence against him.  In a case of  

circumstantial evidence, the issue of motive to commit the crime in  

question, is of paramount importance, which could not be established  

in  the  instant  case.    The  parameters  laid  down by this  Court  for  

deciding  such  a  case  of  circumstantial  evidence,  have  not  been  

applied.  The recoveries relied upon by the courts below, alleged to  

have been made at the instance of the appellant have in fact, all been  

planted and the appellant  has falsely been enroped into the matter,  

merely because he had an alleged intimate relationship with the co-

accused, Shivani Chopra, who was an employee of the deceased and  

had  allegedly  also  developed  an  intimate  relationship  with  him.  

Furthermore, no independent witness has been examined so far as the  

recoveries are concerned. All the witnesses of recoveries are actually  

police personnel.  Thus, the judgments of conviction passed by the  

courts below are liable to be set aside.

4. On the contrary,  Shri  Kamal Mohan Gupta,  learned standing  

counsel appearing for the State, has vehemently opposed the appeal,  

contending that there is no justification for this Court to interfere with  

the concurrent findings of fact that have been recorded by the courts  

below.  Of course, the present case is one of circumstantial evidence,  

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but with respect  to the same,  the chain of  events  is  complete,  and  

every link thereof, is a pointer towards the guilt of the appellant.  The  

appellant  has  failed  to  furnish  any  explanation  in  relation  to  the  

incriminating circumstances put to him, while recording his statement  

under Section 313 of Code of Criminal Procedure, 1973 (hereinafter  

referred to as the `Cr.P.C.’).  The present appeal, thus, lacks merit and  

is liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

6. The  post-mortem  of  the  dead  body  was  conducted  on  

28.12.2002 by Dr. Renu Saroha, Medical  Officer,  General Hospital  

Sohna.  According to the post-mortem report, the following injuries  

were found on the person of the deceased:

i) Cut incised wound on scalp left side 7 cm x 1.5  

cm.   Spindal  shaped  left  frontal  region,  bone  deep.  

Reddish  in  colour.  Extending from the  hair  line  to  be  

posteriorally.  

ii) Spindal shaped wound 4 cm x 1 cm left side of the  

frontal  region.  Fracture  of  tempo  frontal  region  bone.  

Subdural hematoma was present.  

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iii) Incised wound on forehead between two eye brows  

6 cm x.5 cm. Obliquely situated on the nasion.  

iv) Incised cut wound of the nose horizontally incising  

thoroughly nasal bone and cavity extending to the both  

side  of  the  face  maxillary  region  and  communicating  

with the vertical wound as described in injury no.3 right  

side  of  cheek  to  left  side  12  cm x  .5  cm bone  deep.  

Incising the nose completely disfiguring the face.  

v) Incising  cut  wound  on  left  cheek  placed  

horizontally.  Extending horizontally from the left cheek  

upto the base of the nose. 11 cm x 1 cm in length.  

vi) Obliquely  placed  incised  wound  extending  from  

the right eye brow merging below with wound no.4 at  

nasal level.  

vii) Obliquely situated cut wound. Size of 7 cm x .5 cm  

over  the  left  cheek  crossing  the  wound  no.5  at  

perpendicular .  

viii) Cut wound incised of the left lower lip 4 cm x 1.2  

cm Spindal shaped.  

ix) Incised  wound  on  right  side  starting  from  right  

angle of mouth and going posteriorally 2 cm in front of  

the right pinna.  

x) Obliquely situated incised cut wound over to the  

chin 4 cm x .5 cm.  

xi) Cut  incised  wound  of  13  cm x  2  cm extending  

from the tragus left ear and going to interiorally midline  

of neck. 4 cm below the chin.  

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xii) Incised  irregular  almost  spindal  shaped  wound  

over the neck. Extending from the anterior border of right  

crapezius  muscle  to  the  opposite  left  crapezius  border  

anterior part. Cutting the voice box and major vessels of  

neck on left side.  

xiii) Superficial cut wound on left side of the shoulder  

anteriorally 9 cm in size.  

xiv) Cut  wound  on  left  side  elbow  joint  front  part  

spindal  shaped.  Obliquely  situated  cutting  skin  and  

muscle and blood vessels are exposed. 5 cm x 3 cm.  

xv) Horizental  incised  cut  wound  on  right  arm  

involving skin and muscle at the level of upper 1/3rd and  

lower 1/3rd. 10 cm x 2 cm spindal shaped.  

xvi) Spindal shaped cut wound on right elbow joint 11  

cm x 5 cm involving skin, muscle and major vessels.  

xvii) Spindal shaped wound on right forearm 5 cm x 2  

cm involving skin facia and muscle region at the junction  

of lower 1/3rd and upper 2/3rd.   

All the injuries were anti-mortem in nature.  In the opinion of  

the Doctor,  the cause of  death was due to haemorrhage and shock  

caused by the cutting of major blood vessels, as a result of injuries,  

which were sufficient to cause death in the ordinary course of nature.  

The duration of time taken to inflict such injuries was approximately  

24 hours.  Dr. Renu Saroha (PW.13), explained while being cross-

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examined, that the injuries found on the person of the deceased could  

have been caused by a sharp edged weapon and were the possible  

result  of stabbing.  The possibility of use of two separate weapons  

could not be ruled out, however, the said injuries could also have been  

caused  using  only  one  weapon.  Therefore,  it  is  evident  from  the  

aforesaid evidence that, the deceased was a victim of homicidal death.

7. Chander  Shekhar  Jain  (PW.1),  testified  that  he  had  gone  to  

identify  the  dead  body of  the  deceased,  but  was  unable  to  do  so,  

owing to the fact that his face had been mutilated.  The next day, he  

re-visited the said place,  along with Mahender  Jain,  brother of  the  

deceased  and  thoroughly  examined  the  dead  body.   They  then  

identified the same to be that of Ashok Jain.     

8. Anil Garg (PW.2) deposed that Ashok Jain was a resident of the  

United States of America and would visit India occasionally.   Shivani  

Chopra, the co-accused was an employee of Ashok Jain.  He stated  

that the deceased had informed him in December, 2002, that he would  

be coming to Delhi on 26.12.2002 and that he would instruct him, at a  

later date whether or not he would be required to come to receive him  

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from the Airport.  He further gave the contact numbers (landline and  

mobile) of Shivani Chopra  both, in Delhi and in Mumbai.

9. Bijender Kumar (PW.3), who was in-Charge of the car park at  

the  Delhi  Airport  testified  that  on  26.12.2002,  Car  No.UP-32-AG  

9991 remained parked at the Airport parking between 5.26 p.m. and  

8.34 p.m.

10. Shambhu Chaudhary (PW.4),  the Receptionist   of  Hotel  Suji  

International, Paharganj, Delhi deposed that the appellant and the co-

accused  Shivani  Chopra  had  stayed  at  his  Hotel  between  18-

19.11.2002,  and  then,  between  7-8.12.2002  and  yet  again,  on  

26.12.2002, this time along with one Shri  Sudhir Srivastava.   This  

witness provided proof of such stay, by producing requisite guest-log  

registers and further identified both the said accused in Court.

11. Naresh Kapoor (PW.9), the proprietor of Ashoka Continental  

Hotel, Paharganj, deposed that the appellant and co-accused, Shivani  

Chopra stayed in the said hotel on 24.12.2002, upon providing fake  

names and representing themselves  as  Munish  Mathur  and Shivani  

Mathur respectively.  Their stay here was proved by producing the  

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guest-log Register maintained for the purpose of keeping a record of  

guests, in the normal course of business.

12. Narain Singh (PW.11), ASI made recoveries of several articles,  

including cosmetic  items,  blood stained  clothes  of  the  appellant,  a  

gold chain and one gold kara on 11.1.2003  and 14.1.2003 on the basis  

of a disclosure statement made by the appellant. The appellant and the  

co-accused Shivani Chopra, identified the place where the dead body  

was lying.  

13. Inspector Shamsher Singh (PW.21), corroborated the testimony  

of Narain Singh, ASI (PW.11) with respect to all material particulars.  

He also supported the case of the prosecution by explaining how the  

investigation was conducted, how he had taken readings of the said  

mobile  phone  numbers  belonging  to  the  accused  persons,  and  

therefore, concluded the said investigation.

14. Surender Mohan Jain (PW.14), brother-in-law of the deceased  

deposed that  the deceased  was a  Non Resident  Indian.   He would  

however, visit India 2-3 times in a year.  It came to the knowledge of  

the said witness that the co-accused Shivani Chopra, would receive  

the deceased at the Airport on the day of his arrival, on his particular  

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visit to India.  Ms. Urvashi, a niece of Ashok Jain, deceased, informed  

him that her father had talked to her on the mobile phone of Shivani  

Chopra, the co-accused before his death.  He also stated that Shivani  

Chopra had told him that she had, in fact, gone to Airport to receive  

the deceased, however, he never showed up.  He further deposed that,  

Shivani Chopra had developed illicit relations with the deceased.

15. Mahender Kumar Jain (PW.17), elder brother of the deceased  

corroborated the testimony  of Surender Mohan Jain  (PW.14), and  

further deposed that upon hearing the news regarding the death of the  

deceased,  he immediately went to General  Hospital  on 28.12.2002,  

and identified the dead body of Ashok Jain.  He also disclosed that at  

the time that Ashok Jain had left the city of Mumbai, he was carrying  

upon his person, jewellery, i.e., a gold chain,  a pair of diamond rings,  

various cosmetic articles and also cash.     

16. Capt.  Rakesh  Bakshi  (PW.22),  provided  proof  regarding  the  

records of mobile phone numbers belonging to the accused persons.  

Other  witnesses  also  deposed  in  support  of  the  case  of  the  

prosecution and proved all material particulars.

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17. When the appellant and the co-accused Shivani Chopra, were  

examined under Section 313 Cr.P.C., they denied any involvement in  

the said crime.  The appellant  explained that  he was being falsely  

implicated in this case.   He also stated that in connection with the  

same, he had been arrested 5 days prior to the alleged date of arrest  

from Lucknow, and had since such date, been illegally detained.  The  

police had planted each of the alleged recoveries made by them.  The  

jewellery recovered, actually belonged to him.  He deposed that he did  

not know the deceased, Ashok Jain at all, and all alleged details of  

calls etc., were supported by way of fabricated documents.  A similar  

version was given by the co-accused Shivani Chopra who stated that  

the  deceased  Ashok  Jain,  was  in  fact,  her  family  friend.   He  had  

telephoned her father to inform him that he would visit their house at  

Rohini,  on  26.12.2002  but  then  he  failed  to  show  up.   She  had  

absolutely  no intimacy with the deceased.   The alleged records  of  

phone calls etc. were untrue stories based on fabricated records.  She  

did not, in fact,  own any of the telephone numbers, as shown as part  

of the evidence on record.

18. The  appellant  also  examined  Samita  Sinha  (DW.1),  and  

Shailender  (DW.2),  both  of  whom  are  sales  persons  at  Bharti  

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Jewellers,  Mumbai and also, one Subhash, who is the proprietor of  

Bharti  Jewellers  (DW.3),  to  prove  that  the  jewellery  recovered,  

belonged to his family and not to the deceased Ashok Jain.

19. In the above backdrop, both the courts below have appreciated  

the  entire  evidence  and  material  on  record  and  thereafter,  have  

convicted  the  appellant  and the  co-accused  Shivani  Chopra  on the  

basis of the following circumstances:

i) The  intimate  relations  vis-a-vis  Shivani  Chopra  and  the  

appellant,  Munish  Mubar  as  also  between  her  and  the  deceased,  

Ashok Jain.  

ii)  Shivani Chopra had knowledge that the deceased was coming  

to Delhi on the evening of 26.12.2002 and she was to receive him,  

upon his arrival, from the Delhi Airport.  

iii) Shivani Chopra falsely informed Surender Mohan Jain (PW14),  

that  Ashok Jain had not arrived in Delhi  at  all,  and thus,  she was  

unable  to receive him at  the Airport  on the said day.  On all  prior  

occasions, Anil Garg (PW2) would receive him at the Airport.  

iv) Car No. UP-32-AG-999l belonging to the appellant was parked,  

on the evening of 26.12.2002, at precisely 17:26:21 hours in the car  

park of the Domestic Airport, Delhi and was taken therefrom, on the  

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very same day, at 20:34:50 hours and within 3 hours of such taking  

away of the said car, the murder in question,  is known to have taken  

place.  The said car  was later recovered from the possession of  the  

appellant himself.  

v) The calls made from mobile No.9818082l95 at 21:26:41 hours  

on 26.12.2002, were routed through cell No.6572 which pertains to  

the Badshahpur, Gurgaon Tower, which was situated in the vicinity of  

the village Bhondsi,  from where the dead body of Ashok Jain was  

recovered.  

vi) The  records  of  hotel  Suji  International  in  Paharganj,  Delhi  

prove  sufficiently  that  both  the  accused,  along  with  one  Sudhir  

Srivastava  (since the date of incident, proclaimed absconder), stayed  

in  the  said  hotel  on  several  occasions,  including  the  evening  of  

26.12.2002 between 3.40 p.m. and  11.55 p.m.  The appellant Munish  

Mubar,  and  Sudhir  Srivastava  also   stayed  in  hotel  Ashoka  

Continental,  Paharganj,  Delhi on 24.12.2002, whereas the appellant  

had also stayed in the said hotel  along with the co-accused Sudhir  

Srivastava on 25.12.2002, while representing themselves as Munish  

Mathur, Shivani Mathur and Sunil Srivastava, respectively.  

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vii) There was sufficient motive to rob Ashok Jain of the valuables  

and getting rid of him, as the main hurdle in the love affair between  

the appellant and Shivani Chopra.  

viii) There  was  telephonic  communication  between  the  accused  

Shivani Chopra and the deceased on the day of occurrence of the said  

incident and also prior thereto.  

ix) There has been recovery of jewellery, cosmetic articles, a gold  

chain, a gold kara etc. from the appellant, on the basis of disclosure  

statement made by him.   

x) Recovery of a torn vest,  a  blood stained hammer,  one blood  

stained knife and a blood stained pair of trousers was also made, in  

pursuance  of  the  disclosure  statement  made  by  the  appellant  on  

13.1.2003.  

xi) The act of absconding by the accused and ultimately the arrest of  

the accused on 10.1.2003.  

20. Undoubtedly,  in  a  case  of  circumstantial  evidence,  all  the  

circumstances  must  be  fully  established  and  all  the  facts  so  

established, must be consistent with the hypothesis regarding the guilt  

of  the  accused.   The circumstances  so  established,  should  exclude  

every other possible hypothesis except the one sought to be proved.  

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The  circumstances  must  be  conclusive  in  nature.  Circumstantial  

evidence  is  a  close  companion  of  factual  matrix,  creating  a  fine  

network  through  which  there  can  be  no  escape  for  the  accused,  

primarily because the said facts, when taken as a whole, do not permit  

us to arrive at any other inference but one, indicating the guilt of the  

accused.  

21. If the case is examined in the light of the aforesaid settled legal  

propositions, we are of the considered opinion that, there is nothing on  

record  to  doubt  the  existence  of  the  illicit  relationship  of  the  co-

accused Shivani Chopra with the deceased, Ashok Jain as also with  

the appellant, as this fact has been fully established from the evidence  

provided by several  witnesses.   It  has further been proved that  the  

Santro Car belonging to the appellant was parked on 26.12.2002, at  

the Delhi Airport for a duration of 3 hours, when the flight by which  

Ashok Jain (deceased) was to arrive, was scheduled to land, and the  

said car left after the arrival of such Jet Airways flight.  The telephone  

call records reveal the presence of the appellant in the Bhondsi village  

area, i.e., the place of occurrence, at the relevant time of the incident.  

The  recoveries  in  the  said  case,  were  made  upon  the  disclosure  

statement of the appellant.  Some of the articles found, had human  

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blood on them and the same connects the appellant to the said crime.  

The appellant failed to furnish any explanation whatsoever in relation  

to any of the above, when examined under Section 313 Cr.P.C.

22. In  a  case  of  circumstantial  evidence,  motive  assumes  great  

significance and importance, for the reason that the absence of motive  

would put the court on its guard and cause it to scrutinize each piece  

of  evidence very closely in order to ensure that suspicion, emotion  or  

conjecture  do  not  take  the  place  of  proof.  However,  the evidence  

regarding  existence  of  motive  which  operates  in  the  mind  of  an  

assassin is very often, not within the reach of others. The said motive,  

may not even be known to the victim of the crime. The motive may be  

known to the assassin and no one else may know what gave birth to  

such evil  thought, in  the  mind  of  the  assassin. In  a  case  of  

circumstantial  evidence,  the  evidence  indicating  the  guilt  of  the  

accused becomes untrustworthy and unreliable, because most often it  

is only the perpetrator of the crime alone, who has knowledge of the  

circumstances that prompted him to adopt a certain course of action,  

leading to the commission of the crime.  Therefore, if the evidence on  

record suggest sufficient/necessary motive to commit a crime, it may  

be conceived that the accused has committed the same. (See: Subedar  

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Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra  

Bahri v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford  

Daniel v. State of Punjab, JT 2012(8) SC 639)

23.      The issue of non-examination of independent witnesses and  

reliance upon the deposition of police officials as “Panch witnesses”  

was considered at  length by this Court  in  State,  Govt.  of  NCT of  

Delhi v. Sunil & Anr., (2001) 1 SCC 652, wherein this Court held as  

under:  

“….But if no witness was present or if no   person had agreed to affix his signature on   the document, it is difficult to lay down, as a   proposition  of  law,  that  the  document  so   prepared  by  the  police  officer  must  be   treated as tainted and the recovery evidence   unreliable.  The  court  has  to  consider  the   evidence  of  the  investigating  officer  who   deposed to the fact of recovery based on the   statement  elicited  from  the  accused  on  its   own worth.

We feel that it is an archaic notion that   actions  of  the  police  officer  should  be   approached with initial distrust………At any   rate,  the  court  cannot  start  with  the   presumption  that  the  police  records  are   untrustworthy.  As a proposition of  law the   presumption  should  be  the  other  way   around. That official acts of the police have   been regularly performed is a wise principle   of presumption and recognised even by the   legislature.  Hence  when  a  police  officer   gives evidence in court that a certain article   was recovered by him on the strength of the   

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statement made by the accused it is open to   the court to believe the version to be correct   if it is not otherwise shown to be unreliable.   It  is  for  the  accused,  through  cross- examination  of  witnesses  or  through  any   other materials, to show that the evidence of   the police officer  is  either unreliable  or at   least unsafe to be acted upon in a particular   case.  If  the  court  has  any  good  reason  to   suspect  the  truthfulness  of  such  records  of   the police the court could certainly take into   account  the  fact  that  no other  independent   person was present at the time of recovery.   But it is not a legally approvable procedure   to presume the police action as unreliable to   start with, nor to jettison such action merely   for  the  reason  that  police  did  not  collect   signatures  of  independent  persons  in  the   documents made contemporaneous with such   actions.”

24.   It is obligatory on the part of the accused, while being examined  

under Section 313 Cr.P.C. to furnish some explanation with respect to  

the incriminating circumstances  associated  with him, and the Court  

must take note of such explanation, even in a case of circumstantial  

evidence, so to decide, whether or not, the chain of circumstances is  

complete.  The aforesaid judgment has been approved and followed in  

Musheer Khan v.  State of  Madhya Pradesh,  (2010)  2 SCC 748.  

(See also: The Transport Commissioner, A.P., Hyderabad & Anr.  

v. S. Sardar Ali & Ors., AIR 1983 SC 1225).

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25. In view of the aforesaid discussion, it is evident that in spite of  

the fact that in case there is no independent witness of recoveries and  

panch witnesses are only police personnel, it may not affect the merits  

of the case. In the instant case, the defence did not ask this issue in the  

cross-examination to Inspector Shamsher Singh (PW.21) as why the  

independent person was not made the panch witness.  More so, it was  

the duty of the appellant to furnish some explanation in his statement  

under Section 313 Cr.PC.,  as under what circumstances his car had  

been parked at the Delhi Airport and it remained there for 3 hours on  

the date of occurrence. More so, the call records of his telephone make  

it evident that he was present in the vicinity of the place of occurrence  

and under what circumstances recovery of incriminating material had  

been made on his voluntary disclosure statement.  Merely making a  

bald statement that he was innocent and recoveries had been planted  

and  the  call  records  were  false  and  fabricated  documents,  is  not  

enough as none of the said allegations made by the appellant could be  

established.  

In view of the above, we do not find any force in this appeal.  

The appeal is therefore, dismissed accordingly.  

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            ……..………………………J.  (Dr. B.S. CHAUHAN)

                              ………………. ………………………………………J.

              (FAKKIR MOHAMED IBRAHIM KALIFULLA)                                       

New Delhi,  October 4,  2012

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